Citation Nr: 0206089
Decision Date: 06/11/02 Archive Date: 06/20/02
DOCKET NO. 99-19 703 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to a disability rating in excess of 40
percent for right shoulder instability.
2. Entitlement to a total disability rating based upon
individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
B. P. Tierney, Counsel
INTRODUCTION
The veteran served on active duty from June 1992 to January
1995.
This appeal arises from an adverse decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in St.
Petersburg, Florida, dated in July 1999. That decision
denied the veteran's claims of entitlement to a disability
rating greater than 30 percent for recurrent subluxation of
the right (major) shoulder and TDIU. The denials were duly
appealed.
The RO, in a decision dated in January 2001, increased the
evaluation assigned the veteran's disability to 40 percent.
The United States Court of Appeals for Veterans (Court) has
held that where a veteran has filed a notice of disagreement
as to the assignment of a disability evaluation, a subsequent
rating decision awarding a higher rating, but less than the
maximum available benefit, does not abrogate the pending
appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993).
The case has been forwarded to the Board of Veterans' Appeals
(Board) for appellate review.
Although the veteran requested to appear at a hearing before
a traveling section of the Board, the record indicates that
he failed to report for a hearing scheduled before the
undersigned on January 29, 2002. 38 C.F.R. § 20.704 (2001).
FINDINGS OF FACT
1. The veteran has been adequately notified of the evidence
necessary to substantiate the claims and of the action to be
taken by VA.
2. All relevant evidence necessary for an equitable
disposition of the issue as to entitlement to an increased
rating for the right shoulder disability on appeal has been
obtained.
3. Persuasive medical evidence demonstrates the veteran's
service-connected right shoulder disorder is manifested by
limitation of motion to 20 degrees of cross-arm abduction,
pain on motion, use of an airplane splint fixing the arm at
45 degrees from the side, and recurrent subluxation.
4. The veteran is presently solely service-connected for
right shoulder instability and assigned a 40 percent
disability rating. His combined service-connected disability
rating is 40 percent.
5. There is plausible evidence that the veteran is not able
to maintain gainful employment due to functional disability
produced by his right shoulder, and thus the veteran's claim
for TDIU is eligible for extra-schedular consideration.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 40 percent for
right shoulder instability have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991 & Supp. 2001); 38 C.F.R.
§§ 4.1, 4.20, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes
5200, 5201, 5202 (2001).
2. The schedular criteria for consideration of a total
disability rating based on individual unemployability due to
service-connected disability are not met. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)
(2001).
3. The criteria for submission of the veteran's claim for
consideration on an extra-schedular basis under 38 C.F.R.
§ 4.16(b) are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 &
Supp. 2001); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(b)
(2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board notes that there has been a significant
change in the law during the pendency of this appeal with the
enactment of the Veterans Claims Assistance Act of 2000
(VCAA). See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West
Supp. 2001). VA has recently issued final regulations to
implement these statutory changes. See 66 Fed. Reg. 45,620
(Aug. 29, 2001) (to be codified as amended at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a)). The VCAA is
applicable to all claims filed on or after the date of
enactment, November 9, 2000, or filed before the date of
enactment and not yet final as of that date. See Karnas v.
Derwinski, 1 Vet. App. 308 (1991).
In this case, the Board finds that VA's duties to assist and
notify the veteran and his representative have been fulfilled
with respect to the issues on appeal.
First, VA has a duty to notify a claimant and his or her
representative, if any, of any information and evidence
needed to substantiate and complete a claim. 38 U.S.C.A.
§§ 5102, 5103. In this case, the Board concludes that the
discussions in the RO decisions, the Statement of the Case,
and Supplemental Statements of the Case informed the veteran
and his representative of the information and evidence needed
to substantiate the claims and complied with VA's
notification requirements.
Second, VA has a duty to make reasonable efforts to assist a
claimant in obtaining evidence necessary to substantiate a
claim, unless no reasonable possibility exists that such
assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A. Here, the veteran has not referenced
any unobtained evidence that might aid his claim or that
might be pertinent to the bases of the denial of this claim.
In addition, he has been provided several VA medical
examinations in connection with his claim. The Board finds
that another medical opinion is not necessary, as the record
contains sufficient medical evidence to decide the claim.
See 66 Fed. Reg. at 45,631 (to be codified at 38 C.F.R.
§ 3.159(c)(4)). In sum, there is no indication in this case
that the veteran's claim for benefits is incomplete.
The Board concludes that the RO has complied with, or gone
beyond, the mandates of the new legislation and its
implementing regulations. There is no indication that there
now exists any additional evidence from any source that could
substantiate the claim that has not been obtained. The RO
has dealt with the merits of the claim and it did not base
its determination on the concept of a well-grounded claim.
The RO has also provided the veteran with clear notice of the
evidence considered and the types of evidence he needed to
submit to support his claim. The Board finds that it is not
prejudicial to the veteran to proceed to adjudicate the claim
on the current record. See Bernard v. Brown, 4 Vet. App. 384
(1994).
Background
The veteran injured his right shoulder during service. Since
his separation from service he has continued to experience
pain and recurrent dislocations. In support of his claim of
entitlement to an increased disability rating he has
submitted record of VA treatment and examination and
documentation regarding his employment history.
The veteran was first examined by VA in June 1995. He was
noted to have anterior and posterior surgical incision scars
of the right shoulder. He had limited anterior flexion to 80
degrees because of pain in his right shoulder. Backward
extension, lateral flexion, and lateral rotation were normal.
An orthopedic examination later in June 1995 revealed more
specific findings. The veteran reported having had about 18
jobs in the previous 12 months. He kept losing jobs because
of his inability to perform satisfactorily. He was noted to
be right hand dominant. Examination of the right shoulder
showed definite atrophy of the super spinates muscle on the
right. The examiner could not detect any deltoid atrophy nor
supraspinatus atrophy. The right shoulder was very unstable
particularly anteriorly and the veteran had a positive sulcus
sign. The examiner could not demonstrate any posterior
laxity with certainty. Neurovascular was intact. The
diagnosis was recurrent subluxation, right shoulder due to
capsular laxity.
The veteran was next examined in October 1996. On physical
examination he was noted to have well-healed anterior and
posterior incisional sites. There was tenderness over the
anterior portion of the cuff. Musculature was normal for the
right upper extremity and there was no evidence of atrophy.
Active range of motion included 180 degrees elevation, 90
degrees external rotation on the contralateral side, but T5
internal rotation. Passively at the 90 degree abducted
position, the veteran could be externally rotated to 120
degrees on the affected side. Laxity testing showed 2 +
anterior laxity, 1 + inferior laxity, and 3 + posterior
laxity. The examiner could actually dislocate the shoulder
posteriorly and have the veteran relocate the shoulder
voluntarily. The examiner believed that to be the veteran's
primary direction of instability, being able to dislocate the
veteran posteriorly and relocate with ease.
Evaluation of the right hand showed preserved motor function
in all motor groups of the right upper extremity. There was
decreased sensation within the C5, C6, and C7 distribution.
X-ray examination demonstrated some heterotopic ossification
at the inferior portion of the glenoid rim.
The examiner's impression was residual chronic recurrent
shoulder instability with the direction of the instability
being posterior as evidenced by the veteran's clinical
examination. The veteran had severe disability and was
unable to perform daily activities without recurrent
dislocating events.
VA treatment records from December 1996 to April 1997 reflect
treatment for complaints related to the veteran's service-
connected shoulder disability. An April 1997 orthopedic
treatment record indicates the veteran continued to have
posterior dislocations with pain in the entire shoulder area.
He was unable to work and was noted to be going to a mental
health clinic because he "tried to shoot myself." On
examination he had a full range of motion with posterior
subluxation with active range of motion. The examiner
indicated that it was difficult if not impossible to correct
the veteran's shoulder problem. Physical therapy had failed.
In March 1999, the veteran underwent surgery at a VA medical
facility. A right shoulder arthroscopy was performed with
capsular shrinkage.
Subsequent to his convalescence, the veteran was examined by
VA in June 1999. He was noted to continue to have recurrent
dislocations. On physical examination, the veteran was able
to dislocate his right shoulder anteriorly at will. The
examiner noted that in the veteran's last orthopedic clinic
note that all surgery had failed and that fusion was his only
option. The veteran had been unable to work. On
examination, he had marked multiple directional laxity of his
right shoulder. His muscle tone was still good. He was
neurovascularly intact.
The examiner's diagnosis was disabling multidirectional
instability of the right shoulder. The veteran was right
hand dominant. He needed to be retrained in some type of
sedentary job that did not require any lifting or overhead
work. He had been unable to find employment because of the
injury. The examiner noted that this was as close to a
disabling injury as he had seen.
In a Statement In Support of Claim, received in July 1999,
the veteran noted that he had been unable to obtain or
maintain any kind of employment. He stated he was unable to
stay or complete Vocational Rehabilitation because of the
numerous visits for medical treatment. It was further noted
that no construction company would hire him because of his
condition and that was the only kind of work that he knew.
He stated that he and his family were homeless because of his
inability to gain and maintain employment.
In a July 1999 VA treatment record it was noted that the
veteran's right shoulder comes out of joint continuously and
at night his arm could come out and get behind his back and
turn blue and was very painful. He was unable to work and
had lost his living accommodations because of that. The VA
surgeon who operated on the veteran in March 1999 was quoted
as stating that the veteran would have a permanent functional
impairment. He was unable to use his arm in the line of work
that he had performed before (manual labor). His only option
was said to be a shoulder fusion that was a very poor option.
Fusions were painful in the sense that there would be
persistent pain and permanent lack of motion.
A VA orthopedic note in January 2000 indicates the veteran
continued to have a painful instable right shoulder. The
veteran reported that his shoulder came out both anteriorly
and posteriorly. The veteran reported he had pain at rest.
He noted that he was worse with each procedure. On physical
examination of the veteran's right shoulder, the veteran had
no atrophy and could voluntarily dislocate the shoulder.
There was decreased sensation on the lateral arm and the
entire right hand without atrophy.
The veteran was noted to have been sent to prosthetics for an
airplane splint to be ordered and fitted. Photographs of the
veteran wearing the airplane splint are of record.
The veteran was most recently examined by VA in February
2000. He was noted to have been placed into an airplane
splint, which had decreased the amount of subluxation, but he
continued to have constant pain and was then unable to work
as his right upper extremity was not functional and was
grossly unstable. Examination of the right upper extremity
revealed no significant atrophy about the shoulder. He had
decreased sensation over the lateral part of the shoulder.
He had full range of motion of the elbow, wrist, and digits.
Examination of the right shoulder revealed flexion to
approximately 110 degrees with pain and abduction to 90
degrees. When he performed a cross-arm abduction, the
shoulder subluxated posteriorly at approximately 20 degrees
of cross-arm abduction. He had 80 degrees of external
rotation and 0 degrees of adduction. He had 2+ anterior and
posterior laxity and significant apprehension anteriorly. He
was grossly neurovascularly intact distally. He had 4+/5
external rotation and abduction strength.
The examiner noted that that the veteran was suffering from
instability and pain of the right shoulder that began when he
was injured in the Navy in 1993. The veteran was unable to
work or perform any type of significant activity with his
right upper extremity secondary to the gross instability. He
has been placed into an airplane splint that provided no
motion of the shoulder and had failed three surgical
procedures in the past. He currently was very symptomatic
and limited in his activities at approximately 20 degrees of
cross-arm abduction.
Analysis - Increased Rating
Disability ratings are based on the average impairment of
earning capacity resulting from disability. 38 U.S.C.A.
§ 1155 (West 1991); 38 C.F.R. § 4.1 (2001). The average
impairment as set forth in VA's Schedule for Rating
Disabilities (Rating Schedule), codified in 38 C.F.R. Part 4,
includes diagnostic codes which represent particular
disabilities. Generally, the degrees of disabilities
specified are considered adequate to compensate for a loss of
working time proportionate to the severity of the disability.
Id. If an unlisted condition is encountered it is rated
under a closely related disease or injury in which the
functions affected, the anatomical localization, and the
symptomatology are closely analogous. 38 C.F.R. § 4.20
(2001).
The determination of whether an increased evaluation is
warranted is to be based on review of the entire evidence of
record and the application of all pertinent regulations. See
Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These
regulations include, but are not limited to, 38 C.F.R. § 4.1,
which requires that each disability be viewed in relation to
its history.
Although medical reports must be interpreted in light of the
whole recorded history, the primary concern in a claim for an
increased evaluation for a service-connected disability is
the present level of disability. Where entitlement to
compensation has already been established, and an increase in
the disability rating is at issue, the present level of
disability is of primary concern. Francisco v. Brown,
7 Vet. App. 55, 58 (1994).
Once the evidence is assembled, the Secretary is responsible
for determining whether the preponderance of the evidence is
against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49,
55 (1990). If so, the claim is denied; if the evidence is in
support of the claim or is in equal balance, the claim is
allowed. Id.
The Rating Schedule provides that when limitation of motion
of a major arm is limited to 25 degrees from the side a 40
percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic
Code 5201 (2001). Normal shoulder flexion and abduction is
from 0 to 180 degrees (90 degrees at shoulder level), and
normal internal and external rotation is from 0 to 90
degrees. 38 C.F.R. § 4.71, Plate I (2001).
The Court has held that diagnostic codes predicated on
limitation of motion do not prohibit consideration of a
higher rating based on functional loss due to pain on use or
due to flare-ups under 38 C.F.R. §§ 4.40 and 4.45. See
Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown,
8 Vet. App. 202, 206 (1995). VA regulations require that a
finding of dysfunction due to pain must be supported by,
among other things, adequate pathology. 38 C.F.R. § 4.40
(2001); see also Hatlestad v. Derwinski, 1 Vet. App. 164
(1991). The Court has held that section 4.40 did not require
a separate rating for pain but provided guidance for
determining ratings under other Diagnostic Codes assessing
musculoskeletal function. See Spurgeon v. Brown,
10 Vet. App. 194 (1997).
The record shows right shoulder pain is present with
movement. In consideration of any functional loss due to
pain and functional loss due to weakness, fatigability,
incoordination, or pain on movement of the joints, the Board
observes the provisions of 38 C.F.R. §§ 4.40, 4.45,
respectively. See also DeLuca v. Brown, 8 Vet. App. 202,
206-7 (1995) (where rating is based on loss of motion,
38 C.F.R. §§ 4.40, 4.45 must be considered). When the
maximum schedular rating is in effect for loss of motion of a
joint, and the disability does not meet the criteria for a
higher evaluation under any other applicable Diagnostic Code
(after all other potential Diagnostic Codes have been
considered), further consideration of functional loss may not
be required. Johnston v. Brown, 10 Vet. App. 80 (1997). The
Board notes that the veteran is receiving a 40 percent
disability rating for limitation of motion of the arm under
Diagnostic Code 5201 - the highest under that code.
The Board has reviewed several rating codes representing
closely related diseases or injuries under which to consider
the veteran's service-connected disabilities. Alternative
codes providing higher disability ratings include Diagnostic
Code 5200 for ankylosis of scapulohumeral articulation and
Diagnostic Code 5202 for impairment of the humerus.
38 C.F.R. § 4.71a Diagnostic Code 5200, 5202 (2001).
The evidence does not support a 50 percent rating under
Diagnostic Code 5200, which requires unfavorable ankylosis
where abduction is limited to 25 degrees from the side.
There is no evidence of ankylosis, and considering the use of
the airplane splint, the veteran's arm is immobilized at 45
degrees from the side - insufficient for a 50 percent rating.
Id.
The record does not contain evidence of fibrous union,
nonunion of (false flail joint) or loss of head (flail
shoulder) sufficient for, respectively, a 50, 60, or 80
percent disability under Diagnostic Code 5202. Id.
When all the evidence is assembled VA is then responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
the claim, in which case the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990). The Board finds the
preponderance of the evidence is against the claim for a
rating greater than 40 percent.
Analysis - TDIU
VA regulations provide that a total disability rating based
on individual unemployability due to a service-connected
disability may be assigned, where the schedular rating is
less than total, when the disabled person is unable to secure
or follow substantially gainful occupation as a result of
service-connected disability. 38 C.F.R. §§ 3.340, 3.341,
4.16 (2001). If the schedular rating is less than
100 percent, the issue of unemployability must be determined
without regard to the advancing age of the veteran.
38 C.F.R. §§ 3.341(a), 4.19 (2001). The regulations further
provide that if there is only one such disability, it must be
rated at 60 percent or more; if there are two or more
disabilities, at least one disability must be rated at 40
percent or more, and sufficient additional disability must
bring the combined rating to 70 percent or more. 38 C.F.R.
§ 4.16(a) (2001).
In this case, the record reflects that the veteran has one
service-connected disability, but his disability rating is
only 40 percent. As the veteran has neither sufficient
additional service-connected disability to bring the combined
rating to 70 percent, nor a single disability rated at 60
percent, the criteria for a total rating under the provisions
of 38 C.F.R. § 4.16(a) are not met. Thus, the veteran's
claim is not eligible for consideration under § 4.16(a).
It is VA policy that all veterans who are unable to secure
and follow a substantially gainful occupation by reason of
service connected disability shall be rated totally disabled.
38 C.F.R. § 4.16(b). Therefore, if a veteran fails to meet
the applicable percentage standards as provided in 38 C.F.R.
§ 4.16(a), as in this case, extra-schedular rating is for
consideration where the veteran is unemployable due to a
service-connected disability. 38 C.F.R. § 4.16(b); see also
Fanning v. Brown, 4 Vet. App. 225 (1993). Consequently, the
Board must evaluate whether there are circumstances in the
veteran's case, apart from any nonservice-connected condition
and advancing age, which would justify a total rating based
on individual unemployability due solely to service-connected
disabilities. See Van Hoose v. Brown, 4 Vet. App. 361, 363
(1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993).
For a veteran to prevail on a claim based on individual
unemployability, it is necessary that the record reflect some
factor which takes the claimant's case outside the norm of
other such veterans. See 38 C.F.R. §§ 4.1, 4.15 (2001). The
sole fact that a claimant is unemployed or has difficulty
obtaining employment is not enough. A high rating is, in
itself, a recognition that the impairment makes it difficult
to obtain and keep employment. Therefore, the question is
whether the veteran is capable of performing the physical and
mental acts required by employment, not whether the veteran
can find employment. See Van Hoose, 4 Vet. App. 361.
The Court has held that where there is plausible evidence
that a claimant is unable to secure and follow a
substantially gainful occupation and where the Board has not
relied on any affirmative evidence to the contrary, the Court
will reverse the Board's determination, as a matter of law,
that the veteran's case is ineligible for consideration under
§ 4.16(b) by the Director of Compensation and Pension.
Bowling v. Principi, 15 Vet. App. 1, 10 (2001).
Upon review of the evidence of record, the Board finds that
the veteran's claim should be submitted to the Director of
Compensation and Pension for a determination as to whether an
extra-schedular rating is warranted. The Board finds the VA
examination reports are plausible evidence that the veteran
is unable to secure and follow a substantially gainful
occupation because of a service-connected disability.
Therefore, submission of the veteran's claim for
consideration on an extra-schedular basis is warranted.
ORDER
Entitlement to evaluation greater than 40 percent right
shoulder instability is denied.
The schedular criteria for a TDIU rating having not been met,
the veteran's claim is not eligible for consideration under
38 C.F.R. § 4.16(a).
The Board having identified plausible evidence in the record
that the veteran is unable to secure and follow a gainful
occupation, the veteran's claim for TDIU is eligible for
extra-schedular consideration under 38 C.F.R. § 4.16(b).
REMAND
The Board has determined that the veteran's TDIU claim should
be submitted for consideration on an extra-schedular basis
under 38 C.F.R. § 4.16(b). The Board notes that it is
precluded from assigning an extra-schedular TDIU rating in
the first instance. See Bowling, 15 Vet. App. 1 (Court
indicated that to order the Board to make an extra-schedular
rating assignment was contraindicated by prior case law, in
that "[t]he regulatory provision interpreted in Floyd is
less directory than the one contained in § 4.16(b)." See
Id.; see also Floyd v. Brown, 9 Vet. App. 88, 94-97 (1996)
(holding that the Board is not authorized to assign an extra-
schedular rating in the first instance under 38 C.F.R.
§ 3.321(b)).
Accordingly, further appellate consideration will be deferred
and the case is REMANDED to the RO for the following
development:
1. The RO should submit the veteran's
claim for TDIU to the Director of
Compensation and Pension for extra-
schedular consideration under 38 C.F.R.
§ 4.16(b). The record of the veteran's
VA vocational rehabilitation should be
included for consideration by the
Director.
2. The RO must review the claims file and
ensure that all notification and
development action required by the VCAA is
completed. In particular, the RO should
ensure that the new notification
requirements and development procedures
contained in sections 3 and 4 of the Act
(codified as amended at 38 U.S.C.A.
§§ 5102, 5103, 5103A, and 5107) and 66
Fed. Reg. 45,620-45,632 (Aug. 29, 2001)
(to be codified as amended at 38 C.F.R.
§ 3.159) are fully complied with and
satisfied.
If any benefit sought, for which a timely notice of
disagreement was filed, is not granted to the veteran's
satisfaction, the RO should issue a statement or supplemental
statement of the case. The requisite period for a response
should be afforded. Thereafter, the case should be returned
to the Board for final appellate review, if otherwise in
order. By this remand, the Board intimates no opinion as to
any outcome warranted. No action is required of the veteran
until notified by the RO; however, the veteran is advised
that failure to cooperate by reporting for an examination may
adversely affect the claim. 38 C.F.R. § 3.655 (2001).
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
A. BRYANT
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.